Mayor Caldwell urges FAA to revoke aerial advertising waiver: Honolulu's law banning aerial advertising upheld by the 9th Circuit Court of Appeals

HONOLULU —Honoulu Mayor Kirk Caldwell sent a letter to the U.S. Federal Aviation Administration on Thursday noting that the city's ordinance banning aerial advertising has been upheld by the U.S. 9th Circuit Court of Appeals and urging the FAA to immediately revoke a certificate of waiver issued to Aerial Banners North, Inc., an aerial advertising company.

He also asked residents to report illegal aerial advertising to police.

"What this company is doing is illegal and we’re going to put a stop to it," said Mayor Caldwell.  "Aerial advertising is illegal in Honolulu, and our law prohibiting it has been upheld by the 9th Circuit Court of Appeals.  There should be no question about it.  I urge the FAA to immediately revoke its certificate of waiver, which applies to federal regulations only and not to the city's ordinance."

"If you see an illegal aerial advertising banner, please call 911 to alert the Honolulu Police Department," Caldwell said.

The following is Mayor Caldwell's letter to the FAA:

Mr. Ian Gregor
United States Department of Transportation
Federal Aviation Administration
Western-Pacific Region
15000 Aviation Boulevard
Hawthorne, California 90261

Dear Mr. Gregor:

We have been informed of statements attributed to you regarding recent actions by Aerial Banners North, Inc. ("ABN"), which is conducting aerial advertising in violation of the City and County of Honolulu, Revised Ordinances of Honolulu ("ROH"), Section 40-6.1. You were quoted as stating:

"The FAA issued a waiver for the company to conduct banner towing operations. Under federal law, the FAA has sole jurisdiction over all the civilian airspace in the country" –
Ian Gregor, Federal Aviation Administration.

As you may be aware, the City was involved in two protracted litigation cases that clearly determined that the Federal Aviation Administration’s ("FAA") regulations do not prohibit nor preempt the provisions of ROH Section 40-6.1, the City’s Aerial Advertising prohibition.  We refer you to the following cases; Skysign International, Inc. v. City and County of Honolulu, 276 F.3d 1109 (9th Cir. 2002) and Center for Bio-Ethical Reform, Inc. v. City and County of Honolulu, 455 F.3d 910 (9th Cir. 2006). In addition, as part of the Center for Bio-Ethical Reform, Inc. case, your office clearly stated that FAA does not preempt the provisions of ROH Section 40-61; please see the attached letter dated July 31, 2003. Our review of your current guidelines for issuance of a certificate of waiver or authorization for aircraft banner tow operations indicates that such guidelines have not changed since the court decisions on this issue.

In light of the above, the City asks that the FAA revoke the certificate of waiver issued to ABN, based upon attestations made to the City by ABN's counsel of “open and notorious” banner towing and upon the finding of the FAA that ABN has not complied with the terms of ABN's certificate issued by the FAA.

The City looks forward to your clarification of the above-quoted statement of preemption of local laws.

Aloha,

Kirk Caldwell
Mayor